Robocall ridings' election results must be overturned, activist group says in legal challenge

By Stephen Maher and Glen McGregor

A citizen advocacy group is asking the Federal Court of Canada to overturn election results in seven ridings where telephone dirty tricks may have kept voters away from the polls.

The Council of Canadians says pre-recorded robocalls and live calls influenced the outcome of votes in closely fought races in British Columbia, Manitoba, Saskatchewan, Yukon and Ontario.

The group is backing the first legal challenge of election results since the Ottawa Citizen and Postmedia News revealed ongoing Elections Canada investigations into misleading election day calls in Guelph and other ridings.

The organization’s lawyers filed four applications in court on Friday and was due to file three more Monday, all seeking have the results of the votes set aside.

The applications claim that irregular, fraudulent or illegal activities affected the outcome in each of the seven ridings.

All of the ridings named were won by Conservative candidates and all but one was decided by fewer than 1,000 votes.

The Council of Canadians is an Ottawa-based left-of-centre organization chaired by activist Maude Barlow and originally formed to oppose the Free Trade Agreement with the U.S. in the 1980s.

The voter suppression tactics alleged in the litigation include “calls that misdirected electors to the wrong poll or calls of a harassing nature intended to discourage support for a particular candidate,” said Ottawa lawyer Steven Shrybman, who represents the council.

Shrybman said these cases test new ground by asking the court to weigh the effects of a pattern of voter suppression, not just specific acts that have characterized the few legal challenges of past election results.

“We don’t know exactly what the standards will be,” he said. “How do you measure the effect of voter suppression techniques on the result?”

Under section 524 of the Elections Act, any elector or candidate in a riding can launch a legal challenge of the outcome before a competent court. Each of the seven Council of Canadians applications is filed on behalf of named electors in the ridings.

The ridings involved in Council of Canadians cases were chosen because electors came forward and the margins of victory were comparatively small, meaning there is a reasonable basis to believe the alleged irregularities changed the result, Shrybman said.

“We think we have some good evidence about how effective robocalling is but on our evidence, a 6,000-vote margin would be hard to overcome.”

• Winnipeg South Centre, where Liberal Anita Neville was defeated by Conservative Joyce Batemen by 722 votes. Neville said on the eve of the election and on election day, Liberal voters in her riding received calls directing them to the wrong polling station, and earlier in the campaign, voters received harassing calls from fake Liberal callers.

• Saskatoon-Rosetown-Biggar, where Conservative Kelly Block held off a challenge from New Democrat Nettie Wiebe, by 538 votes.

• Vancouver Island North, where Conservative John Duncan, now minister of aboriginal affairs, won over New Democrat Ronna-Rae Leonard by 1,827 votes. According to the Comox Valley Record, some voters in the riding have reported receiving automated calls directing them to non-existent polling stations.

• Yukon, where Liberal incumbent Larry Bagnell was defeated by Conservative Ryan Leef by 132 votes. The Yukon News has reported that identified opposition supporters in the riding received calls telling them their polling station had moved. Elections Canada has interviewed witnesses in the riding.

• Nipissing-Timiskaming in northern Ontario, where Conservative Jay Aspin beat incumbent Liberal MP Anthony Rota by 18 votes. A Liberal source said Rota didn’t want to be seen as a sore loser by launching his own challenge.

• Elmwood-Transcona in Manitoba, where Conservative Lawrence Toet defeated New Democrat incumbent Jim Maloway by 300 votes. The NDP says voters in the riding have reported receiving calls directing them to the wrong polling stations.

Not included in the legal action is Etobicoke-Centre, where former Liberal MP Borys Wrzesnewskyj is funding his own legal challenge of the outcome after losing to Conservative Ted Opitz by 26 votes in the May 2 election.

Also not included is the riding of Guelph, the epicentre of the robocalls scandal, where Liberal Frank Valeriote won by more than 6,000 votes, despite more than 7,600 calls that fraudulently directed voters to the wrong polling stations.

If it is convinced that irregular or illegal acts changed the outcome, the court can void the results and trigger a byelection in each riding affected. But even if the Tories were to lose byelections in all seven ridings, they would still hold a majority of seats in the House of Commons.

Shrybman said he hopes the cases will be heard quickly.

“If this remedy is to have any utility, it has to be provided quickly,” he said, though he admitted it likely would take at least a year to resolve.

It would be faster than other federal court cases, however, because any decisions would be appealed to the Supreme Court of Canada, with the additional step of a hearing before the Federal Court of Appeal.

The organization hopes that it can use its lawsuit to discover the volume of deceptive or fraudulent calls in other ridings, by convincing a judge to order phone carriers to turn over records showing how many calls were placed into each riding from numbers associated with suspicious calls.

The respondents in all the cases are Chief Electoral Officer Marc Mayrand, the returning officers in each riding, and all candidates on the ballot in each riding.

On Thursday, Mayrand is scheduled to discuss the robocalls scandal with MPs on the Procedure and House Affairs Committee.

Mayrand recently offered to come to committee, and was scheduled by the government to appear on the same day that most political journalists in Ottawa will be in the federal budget “lockup.”

The last time a court overturned a federal election result was 1988, when an Ontario Supreme court judge found that the number of questionable ballots cast in the Toronto-area riding of North York was greater than the margin of victory by Liberal Maurizio Bevilacqua. Bevilacqua won the subsequent election.

Nobody has said that they were prevented from voting by fraudulent or misdirecting calls during the election, although Elections Canada officials reported in court documents that angry voters in Guelph tore up their voter cards in when they discovered that they had been tricked.

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